and solicitor to be examined on interrogatories before the Master, and the cause was to stand for further direction: And the parties and solicitor being accordingly examined, and the cause coming to be heard, 3d March, 1698, the Chancellor, upon hearing the examinations read, declared it was plain that Edward was only a nominal person, and his name made use of by appellant to bring about the account again in the other causes; and thereupon ordered and decreed as appellant hath shewed; which order and decree respondents insisted ought to be affirmed, because the re-hearing of the special matter of the report was brought on at appellant's request; and it appeared by appellant's own letter, dated 17th August, 1686, that he was persuaded by Sir Thomas Lynch to accept of a lease of the said farm for securing the due payment of his interest money; and also appellant's receipt, dated 24th April, 1682, was read, for 27l. 10s. which, with 122l. 10s. being half a year's rent of the said farm, (then due) was in full for half a year's interest of the said mortgage of 5000l. due Lady Day, 1682. And because it mani-[91]-festly appeared Edward was only a nominal plaintiff, and that that suit was contrived by appellant to unravel matters formerly settled in the other causes; and because it also appeared that the Earl of Torrington was never guardian to respondent Philadelphia, nor ever had any concern with her, and that Sir Robert Cotton, respondent's father and guardian, had paid Gosling, by appellant's order, the rent due for the part held by her; and that no proof was made to entitle appellant or his brother to any other allowances, respondents insisted the appeal should be dismissed with costs. (Wm. Dobyns.)
Die Mercurii, 3 Maii, 1699. After hearing council on this petition and appeal, it was ordered and adjudged by the Lords, that the appeal should be dismissed, and the several decrees, orders, and proceedings complained of affirmed. Lords Journ. vol. xvi. p. 462.
Case 18.—John Oldbury, Merchant,—Appellant; Owen Wynne, Gentleman,—Respondent [1699].
The appellant shewed, that about May, 1692, Ellan, a scrivener, being to advance 500l. to Dr. Triplet on a mortgage of ground rents in London, applied to respondent (his client) to lend it, who pretended to be then out of cash, but told Ellan, if he could get any person to advance the money for the present, respondent expected money in a month, and would then advance the 500l. and take an assignment of the mortgage to himself; and that Ellan thereupon applied to appellant, who at first refused, but at Ellan's importunity, and telling him if he advanced 300l. respondent would lend 200l. and appellant should take the mortgage in his own name, and respondent would in a month take an assignment, and repay appellant the 300l. with the interest again; appellant, in kindness to Ellan, consented to lend the 500l. and that thereupon Ellan received 200l. from respondent, for which he gave his own receipt as part of the 500 to be advanced upon the mortgage; but respondent, who was altogether a [92] stranger to appellant, never appeared in the business, but left it entirely to Ellan, and appellant never gave any note or other engagement for the 200l. And about 1st May, 1692, Ellan paid Triplet 200l. and the appellant paid him 300l. and took a mortgage from Triplet in his own name for 500l. and in about two months after appellant called on Ellan to get respondent to pay the 300l. and take an assignment of the mortgage, who, after frivolous excuses, at length told him respondent's mind was altered, but he (Ellan) would get some other person; and accordingly, 4th October, 1692, procured one Atkinson, who paid 500l. and took an assignment of the mortgage from appellant, and then Ellan desired the appellant to pay him the 200l. for respondent, which the appellant refused, unless by a written order from respondent; and Ellan desiring appellant to write such an order as would satisfy him, appellant wrote an order in these words: "Mr. Oldbury, seeing I do not proceed to take off the mortgage Mr. Triplet made to you as I intended, I pray pay the 200l. formerly advanced thereupon to Mr. James Ellan for my use, whose receipt shall be your discharge. Witness my hand the 5th October, 1692." Which
196
